Puleston v. United States

• Decision Date: 07 July 1898
• Citation: 88 F. 970
• Parties: Puleston v. UNITED STATES.
• Court: U.S. District Court — Northern District of Florida

88 F. 970

Puleston v. UNITED STATES.

United States District Court, N.D. Florida.

July 7, 1898

Buckner Chipley, for petitioner.

John Eagan, U.S. Atty.

SWAYNE District Judge.

The respective parties, by their attorneys, have filed a stipulation covering all the facts relied on in the case leaving only to the court such questions of law as have not already been passed upon on the demurrer.

In items 3, 4, 5, and 22 of Schedule A, the question is presented as to whether mileage, under paragraph 25, Sec 829, Rev. St., should be continuous, or if the deputy can claim actual mileage traveled, when a part of the trip is made at one time, and after the lapse of several days the trip is completed. Said paragraph reads as follows: 'For travel in going only, to serve any process, * * * six cents a mile, to be computed from the place where the process is returned to the place of service. ' Also, the act of August 18, 1894, which requires that the mileage of any deputy shall be actual and necessary. All that is required by these provisions of law is that the deputy to whom the writ was delivered actually and necessarily traveled the distance for which the marshal claims the mileage, which is clearly shown to be the case by the stipulation filed in this case.

Item 9 Schedule A: This item represents fees earned in a case where the defendant at the time of the issuance of the warrant was out of the Northern district of Florida. The deputy went out of the state, and induced the defendant, either by showing the warrant or otherwise,-- it does not appear,--to go back into the district. No arrest could have been made on this process outside of the limits of the district, but as soon as the state line was crossed the defendant was in the Northern district of Florida; and the petitioner contends that an arrest was effected in the Northern district of Florida, and that the marshal was entitled to mileage from the state line, to the commissioner in Florida, who in this instance proved to be the nearest to the place of entrance into the state. The comptroller has decided this question in favor of this contention. In re Account of D. T. Guyton (Sept. 26, 1894) Cousar's Dig. p. 77, item 23. It appears proper to regard the matter of this arrest in this light; for, otherwise, to disallow this item would have the effect of rendering the arrest entirely illegal, so far as concerns the acts of the deputy after he passed the state line, and came into the Northern district of Florida.

Items 11, 12, 13, and 16, Schedule A: It is admitted that the fees in all of these cases were earned where the prisoner was not taken before the commissioner nearest the place of arrest, but was taken before the commissioner who issued the warrant. In no instance was there a copy of the affidavit attached to the warrant as issued by the commissioner. The appropriation act of August 8, 1894, in which it was declared that no mileage was to be allowed a marshal for transportation of deputy and prisoner, etc., when not taken before the commissioner nearest the place of arrest, reads as follows:

'It shall be the duty of the marshal, his deputy, or other officer, who may arrest a person charged with any crime or offense, to take the defendant before the commissioner or the nearest judicial officer having jurisdiction under existing laws, for a hearing, commitment, or taking bail for trial, and the officer or magistrate issuing the warrant shall attach thereto a certified copy of the complaint; and upon the arrest of the accused, the return of the warrant, with a copy of the complaint attached, shall confer jurisdiction upon such officer as fully as if the complaint had originally been made before him, and no mileage shall be allowed any officer violating the provisions hereof.'

This act, in words and effect, only applies to money thereby set aside for certain expenses of the government, but does not place any general restriction upon the commissioners and marshals, but refers to the allowance of their fees at the treasury department out of this appropriation. The concluding phrase means, of course, 'And no mileage (out of the money hereby appropriated) shall be allowed any officer violating the provisions hereof. ' It is usual and customary, where the witnesses are more convenient to the commissioner who issued the warrant, to take the prisoner before him, and especially where no copy of the affidavit is attached; thus saving the government large sums yearly in mileage of four witnesses or less, as the case might be; and, as there is no general restriction on the marshal, it lies in his discretion, especially where no bad faith, or inordinate desire to increase his fees, is shown. In U.S. v. Ewing, 140 U.S. 148, 11 Sup.Ct. 745, the court says:

'The cases of U.S. v. Dickson, 15 Pet. 141, and Minis v. U.S., Id. 423, are cited in support of this view. The limitation and effect of provisos in enacting clauses of a statute are considered in these cases, and the rule declared, in the first of them, 'that where the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is construed strictly, and takes no case out of the enacting clause which does not fall fairly within its terms.' In the case of Minis v. U.S. it is said by Mr. Justice Story (page 445): 'It would be somewhat unusual to find ingrafted upon an act making special and temporary appropriations any provision which was to have a general and permanent application to all future appropriations.

Nor ought such an intention on the part of the legislature be presumed, unless it is expressed in the most clear and positive terms, and wherever the language admits of no other reasonable interpretation. The office of a proviso, generally, is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the legislature to be brought into its purview. A general rule, applicable to all future cases, would most naturally be expected to find its proper place in some distinct and independent enactment.' * * * In the case under consideration, if the proviso had been simply that commissioners should not be entitled to any docket fee, we should have had little doubt that it would be held as applying only to the $50,000 appropriated in the bill; but as the proviso contains a substantial re-enactment of the clause of the Revised Statutes (section 847) fixing the fees for similar services, with the prohibition against docket fees tacked thereto as an amendment, we find it impossible to give effect to the whole proviso without construing it as expressing the intention of congress to amend that clause of section 847.'

It therefore clearly appears, under these rules of construction, that this proviso only applies to the money thereby appropriated. These items represent a meritorious case of an effort to save the government expense in mileage of witnesses.

It further appears from admissions herein, in the evidence, that there was no copy of the complaint or affidavit attached to the warrant issued in these cases. In the case of U.S. v. Donahower, 29 C.C.A. 342, 85 F. 547, the circuit court of appeals for the Eighth circuit, in construing this act, says:

'The circuit court finds as a fact that in each case included in this finding the warrant was not issued or made returnable before the circuit court commissioner before whom it was returnable by the connivance, at the request, or with the knowledge of the petitioner, but came into his hands in the regular course of the business of his office, and was served and executed by him in obedience to its mandate; that it did not appear from the testimony that a certified copy of the complaint upon which each of the warrants was based was attached to the warrant; that in each case the mileage charged was actually and necessarily traveled by the plaintiff; and the several items included in the finding, amounting to $188.70, were therefore allowed. We think the items of this account were properly allowed by the circuit court. The finding of fact shows that in none of the cases included in the finding, for which charges have been made, was there attached to the warrant a certified copy of the complaint, which, under this statute, would be necessary to confer jurisdiction upon any commissioner or magistrate before whom the marshal might take the person arrested. Without the certified copy of the complaint attached to the warrant, a commissioner or magistrate nearer the place of arrest than the commissioner issuing the warrant would be without jurisdiction to hear the case. As stated by the circuit court, the marshal would have to obey the warrant in its legal effect; and, if no certified copy of the complaint was attached, to give jurisdiction to any other commissioner or magistrate he would-- the warrant so directing-- be obliged to take the arrested person before the commissioner who issued the warrant.'

There can be no presumption that in any of these cases the certified copy of the complaint was not attached by the commissioner through the connivance or at the request of the marshal, and there has been no attempt to prove this, or even a suggestion on behalf of the government; and, with as well-considered authority as the foregoing, nothing could be added.

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